Legal Profession Case Briefs
I. Report of the Joint Conference on Professional Responsibility of the Association of the American Law Schools and American Bar Association (pp. 370-82)
a. Goal of the meeting: understand the nature of a lawyer’s responsibility
b. Professional Responsibility
i. Letter-bound observance of ethical cannons is not equivalent to practice of professional responsibility
ii. True sense of professional responsibility comes from understanding of reasons behind restraints and cannons
c. Should act as an advocate and counselor
i. Goal of collaborative effort
ii. Also serves public at large
d. Integrity of entire system depends on the advocate
e. Adversary system = only effective means to combat human system of judging too swiftly
i. System is an expression of human insight in design and social framework
1. Without this, capacity for impartial judgment can attain full realization
f. Private practice = form of public service
i. Appreciation and respect for larger framework
g. Lawyer serves as negotiator and draftsman
i. Helps advance public interest by facilitating process of voluntary self-governance
ii. Works against public interest when obstructs channels of collaborative effort
1. Seeking petty advantages to detriment of larger process
h. Lawyer = guardian of due process
i. Trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends
ii. One of the highest goals of society is to achieve and maintain equality before the law
iii. Legal profession has a moral obligation to see to it that those who are already “handicapped” do not suffer the cumulative disadvantage of not having proper legal representation
1. Adjudication cannot be effective or fair if there is only one sided representation by counsel
iv. Lawyer has both the best chance to know when the law is working badly and the special skill to put the law back in order
i. Two important positions of public trust
i. Office of public prosecutor
ii. Lawyer who becomes a representative in the legislative branch of government, especially when continues private practice after assuming public office
II. Client Perjury (1-21)
a. Crispus Nix, Warden, Petitioner v. Emanuel Charles Whiteside
i. Attorney – Gary A. Robinson
ii. Whiteside was charged with the murder of an acquaintance in a botched drug deal. Whiteside initially told his attorney (Robinson) that he stabbed the victim in self-defense because he saw a gun in the victim’s hand. Later, Whiteside admitted that he did not actually see a gun, but that he planned on testifying that he saw a gun in order to bolster his defense.
iii. Robinson advised Whiteside that he would not support perjury and would advise the court of Whiteside’s plan and seek to withdraw if Whiteside went ahead with his plan to lie. Whiteside followed his attorney’s advice and did not say that he saw a gun. He was subsequently convicted of second-degree murder. A court of appeals upheld the conviction and the Supreme Court found that the right to assistance of counsel was not violated when Robinson refused to assist in presenting perjured testimony.
iv. Range of reasonable professional responses to a criminal defendant client who informs counsel that he will perjure himself on the stand:
1. First duty to is to try to dissuade client from the unlawful course of conduct
2. Duty of loyalty and duty to advocate defendant’s cause vs. duty to not take steps or in any way assist the client in presenting false evidence or otherwise violating the law
3. There is an explicit exception to the duty of confidentiality when the client’s announced intention is to commit a crime – not merely authorized, but actually required
v. Relevant Background
1. A lawyer is responsible not only to professional standards, but also to her own conscience
2. Client Perjury
a. An attorney is not only an advocate for her client, but is also an officer of the court
b. Model Rule 3.3 – mandatory for a lawyer, who knows the client has committed perjury, to disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury
c. Penalties – suspension is generally appropriate when a lawyer knows that false statements are bring submitted to the court
3. Attorney Competence – should not handle matters which they are not competent to handle
4. Model Rule 1.1 – competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
III. US v. Altstoetter
a. Military Tribunal – Chief of Counsel for War Crimes – Telford Taylor, Brigadier General
b. Defendants – all held high judicial office and all but one were trained lawyers
c. Indictment – War Crimes
i. Commission of atrocities and offenses against persons and property
ii. Extraordinary irregular courts, superimposed upon regular court system was used by all of the defendants for the purpose and in fat creating a reign of terror to suppress political opposition
iii. Special Courts subjected Jews, Poles, Ukrainians, Russians, gypsies, to discriminatory and special panel laws and trials and denied them all semblance of judicial process
iv. German criminal laws, through a series of expansions and perversions made petty misdemeanor treasonable for the purpose of exterminating Jews
v. Unlawful execution and murder
vi. Sterilization and castration laws
vii. Immunity and amnesty granted to Nazi Party members
d. German Judicial System
i. Prior to 1933
1. Based on Roman law
2. Enacted in the form of codes
3. Local courts – jurisdiction over minor civil suits, and less serious criminal offenses
4. Appellate courts – civil and criminal appeals from all decisions of local courts
5. Supreme court – apex of the judicial pyramid, determined important legal questions
ii. Under the Third Reich
1. Administration of justice was concentrated exclusively within the government of the Reich
iii. Ministry of Justice: creation of Special Courts, control of associations of attorneys, special training for Nazi indoctrination of youth
iv. Hierarchy of Regular Courts: the established hierarchy of courts continued in effect, but the creation of the extraordinary courts increasingly cut into jurisdiction of the regular courts and there was a drastic curtailment of the right of appeal
v. Extraordinary Courts: permeated the entire judicial structure and took over all judicial business which touched political issues or related to the war
1. Special Courts – jurisdiction over disobedience of government orders, sabotage, etc
2. Hereditary Health Courts – sterilization courts
3. People’s Court – replaced the Supreme Court – two judges, three Nazi laymen
e. Defendants
i. Rothenberger:
1. Requested copies of indictments in all politically important cases
2. Said that absolute and complete independence of the judge is possible only in normal conditions of peace, but they did not have those conditions
3. Fact that a debtor is a Jew should as a rule be a reason for arresting him
4. Said that he heard rumors of the abuses in the concentration camps, but that when he went, he did not discover any abuses
ii. Rothaug:
1. Would summon attorneys to act as defense counsel merely 2 hours before the trial
2. Oversaw trials that lasted only a few hours
3. Punished juveniles with adult punishments
4. Sentenced two young Polish women to death and executed 4 days after trial
5. Young man was accused of making indecent advances to his employers wife, was tried twice
6. Sentenced people for offense of racial pollution
IV. Use and Abuse of the Civil Process; Lawyer as Agent and Fiduciary (pp. 21-52)
a. Relevant Background
i. Civil Process and Labor Disputes
1. Attorney participation in labor suits is incredibly old
2. Philander Knox and the Monongahela River case
3. Attempt to take over Homestead Steel Works
ii. The National Labor Relations Act (1935)
iii. Labor-Management Disputes became more legally based rather than physical
1. Lock outs, boycotts, and other strategic behavior
a. Lawyers new role
b. Experts in regulation on strikes, lockouts, and the collective bargaining
c. One strategic behavior in a labor dispute is to file a lawsuit
b. Bill Johnson’s Restaurant’s Inc. v. National Labor Relations Board – p. 23
i. Facts: Petitioner owned 4 restaurants in Phoenix AZ and fired one
on in determining costs, but essentially the loser pays the legal fees
2. A great deal of controversy over whether to implement the rule in U.S.
3. Concern over access to courts being deterred by fearing punishment in the form of paying the other guys legal fees
4. Advantages and disadvantages of the English Rule
a. Adv – puts the cost on the person who is most able to avoid those costs
b. Disadvantage – chills risk averse litigants who would not want to sue even if it is a good one because the risk is just too high
i. Gives better chances to corp. litigants over small time clients
iii. American Rule
1. Attorney’s fees are generally not part of judgment on costs
2. Some argue that this creates an incentive to bring frivolous suits
a. Does not impose the full cost of litigation on the parties
3. Some cases already give litigants attorney fees
a. When sanctioned under a Rule 11 motion by the judge
4. Some statutes allow recovery of attorney fees
a. Shareholder derivative suits
e. The Lawyer as Agent and Fiduciary – p. 38
f. U.S.A. v. Armand P. D’Amato
Facts: D’Amato is a partner in a New York law firm. His brother is a U.S. Senator on the Senate Appropriations Committee. Unisys is a Fortune 500 company that manufactures missile control systems that are sold to the government. Charles Gardner is a VP in charge of marketing at Unisys. During this time Gardner participated in bribing and other illegal activities, that D’Amato was unaware of. In Spring of 84 D’Amato was hired by Gardner to represent the interests of Unisys to his brother and the rest of the Sen. Approp. Com. He was to be paid by purchase order and assigned a new attorney to the case because he was starting the Washington office. Gardner was unsatisfied with the new attorney and asked D’Amato to represent them personally, he did so and a new purchase order from a subsidy. Of the company that was now being represented was issued. He was to turn over reports from the Senate and hold sway with Senator D’Amato. D’Amato sent out monthly bills for retaining service and routed letters through the Senator’s Office to the Navy. Gardner was eventually investigated by Unisys when they were doing an investigation of unethical activities within the company. When Gardner was questioned he said that the reports were designed to make sure that the consultants were getting paid because they were doing valuable work. He denied the illegal activities he was involved in. Gardner closed the subsidy and now was forced to rout the purchase orders through Unisys. He did so by circumventing the legal dept and instead addressing the purchase orders to Forchellli, D’Amato’s partner, in order to avoid political embarrassment. Forchelli received the invoice and asked D’Amato if he had done the work prior to signing, there is no evidence that Forchelli returned the invoice. A similar invoice for back payment was processed the same way. Finally, the invoice was returned because the name on the letterhead was for the firm and the name on the purchase order was just Forchelli. Forchelli fixed the discrepancy and resubmitted the purchase order. Throughout the relationship D’Amato never submitted a written report but instead lobbied for Unisys over 100 hours, made three trips to D.C., and saw to it that two letters were routed to Navy and Commerce Departments regarding defense contracts. A grand jury indicted D’Amato with 24 counts of
